Final Report (September 1999) - Law Reform Commission of ...

REVIEW OF THE CRIMINAL

REVIEW OF THE CRIMINAL AND CIVIL JUSTICE SYSTEM Interrogatories and admissibility of documents 13.15 Currently, not all documents discovered are automatically admissible as evidence before the court. There are a number of requirements which must be satisfied before documents can be admitted. These are set out in section 79C of the Western Australian Evidence Act 1906. For example, currently a document only may be admissible as evidence if its author is called as a witness to authenticate it. (Discussed further at Chapter 20.) Interrogatories can be useful in obtaining an admission of the authenticity of the document from the opposing party so avoiding the need to call the witness. However, if disclosed documents, including those appended to case statements, were automatically capable of being tendered as evidence, unless the other party disputed their authenticity, the interrogatory could be avoided. 93. All disclosed documents, including those appended to case statements, should be automatically capable of being admitted into evidence without reference to a witness, unless the authenticity of the document is disputed. The weight to be given to any disclosed documents will be a matter for the court. Objections to interrogatories 13.16 In Western Australia the grounds for objection to answering interrogatories are numerous. Therefore great care needs to be taken in drafting interrogatories to prevent objections being taken on technical grounds. If the use of interrogatories is significantly curtailed, it will become even more important that parties properly answer interrogatories. 94. The only opportunity to query or object to an interrogatory should be at the time the case manager’s approval of the draft list of interrogatories is being sought. 95. An answer to an interrogatory should be given directly and without evasion or resort to technicality. 96. If parties fail to properly answer interrogatories, case managers should have a discretion to require them to attend for oral examination prior to trial. 108

14 Summary Judgment, Interlocutory Injunctions & Trials of Preliminary Issues Summary judgment Summary judgment by the plaintiff Summary judgment by the defendant 14.1 Summary judgment allows a litigant to obtain judgment without going to trial. In Western Australia, summary judgment in the Supreme and District Courts is governed by Orders 14 and 16 of the Rules of the Supreme Court. Similar procedures exist in the Local Court: section 47A Local Courts Act. The rules were amended in 1996 to expand and rationalise summary judgment procedures. In the higher courts the plaintiff or the defendant can request summary judgment, although different rules apply depending on who applies. Proceedings also may be determined in a summary manner where the parties consent. Summary judgment in the Local Courts is discussed further in Chapter 17. 14.2 A plaintiff can apply for summary judgment in relation to the whole or part of the claim, normally within 21 days of the date the defendant enters an appearance. This reflects the policy that as summary judgment applications are designed to save costs, the application should be brought before significant expense is incurred. The application must be supported by an affidavit verifying the facts upon which the claim is based and stating the belief that there is no defence to the claim. If the court is of the view that the plaintiff had reasonable grounds to believe that the defendant would be given unconditional leave to appeal against a decision in the plaintiff’s favour, the court may dismiss the application with costs under Order 14 rule 8 of the Supreme Court Rules. However, normally the order in an unsuccessful application for summary judgment is that costs go to the eventual winner. 14.3 A defendant may apply for summary judgment, normally within 21 days after the defendant enters an appearance, on the grounds that the 109